Prayer: Writ petition is filed under Article 226 of Constitution of India for issuance of a Writ in the nature of Certiorari, calling for the records relating to the order of the 4th respondent in G.O.Ms.No.39, Agriculture (AU) Department dated 01.03.2010 and to quash the same insofar as retaining age of 60 years for superannuation in respect of the petitioners are concerned and consequently direct the respondents 4 to 7 to fix the age of superannuation of the petitioners at 65 years with effect from 30.06.2010.
O R D E R
1. The petitioners have invoked equitable jurisdiction of this court under Article 226 of the Constitution of India to challenge the impugned G.O.Ms.No.39, Agriculture (AU) Department dated 01.03.2010 fixing the age of retirement of the professors as 60 years, with a further direction that they shall not be reemployed.
2. The impugned part of G.O is challenged by the petitioners on the ground that it is contrary to the Statutory Regulations of the University Grants Commission, which are binding on the State Government.
3. In support of his contention learned Senior counsel appearing on behalf of the petitioners placed reliance on the letter No.1-32/2006-U.II/U.I(!) dated 31.12.2008 of the Central Government stipulating there in as under:
"(f) Age of superannuation:
(i) In order to meet the situation arising out of shortage of teachers in universities and other teaching institutions and the consequent vacant positions therein, the age of superannuation for teachers in Central Educational Institutions has already been enhanced to sixty five years, vide the Department of Higher Education letter No.F.No.1-19/2006-U.II dated 23.3.2007, for those involved in class room teaching in order to attract eligible persons to the teaching career and to retain teachers in service for a longer period. Consequent on upward revision of the age of superannuation of teachers the Central Government has already authorized the Central Universities, vide Department of Higher Education D.O.Letter No.F.1-24/2006-Desk(U) dated 30.3.2007 to enhance the age of superannuation of Vice-Cencellors of Central Universities from 65 years to 70 years, subject to amendments in the respective statutes, with the approval of the competent authority (visitor in the case of Central Universities).
(ii) Subject to availability of vacant positions and fitness, teachers shall also be re-employed on contract appointment beyond the age of sixty five years up to the age of seventy years. Re-employment beyond the age of superannuation shall, however, be done selectively, for a limited period of 3 years in the first instance and then for another further period of 2 years purely on the basis of merit, experience, are of specialization and peer group review and only against available vacant positions without affecting selection or promotion prospects of eligible teachers.
(iii) Whereas the enhancement of the age of superannuation for teachers engaged in class room teaching is intended to attract eligible persons to a career in teaching and to meet the shortage of teachers by retaining teachers in service for a longer period, and whereas there is no shortage in the categories of Librarians and Directors of Physical Education, the increase in the age of superannuation from the present sixty two years shall not be available to the categories of Librarians and Directors of Physical Education."
This was issued in pursuance to the regulations of the University Grants Commission.
4. Learned Senior counsel further contended that any doubt regarding implementation of the scheme for enhancing the age from 60 to 65 years stood removed by framing of statutory regulation called the University Grants Commission (Minimum qualifications for appointment of teachers and other Academic staff in Universities and Colleges and other measures for the maintenance of standards in Higher Education) Regulations 2010. The regulation with regard to age of superannuation reads as under:
"(f) Age of superannuation
(i) In order to meet the situation arising out of shortage of teachers in universities and other teaching institutions and the consequent vacant positions therein, the age of superannuation for teachers in Central Educational Institutions has already been enhanced to sixty five years, vide the Department of Higher Education letter No.F.No.119/2006-U.II dated 23.3.2007, for those involved in class room teaching in order to attract eligible persons to the teaching career and to retain teachers in service for a longer period. Consequent on upward revision of the age of superannuation of teachers, the Central Government has already authorized the Central Universities, vide Department of Higher Education D.O. Letter No.F.1-24/2006-Desk(U) dated 30.3.2007 to enhance the age of superannuation of Vice Chancellors of Central Universities from 65 years to 70 years, subject to amendments in the respective statutes, with the approval of the competent authority (visitor in the case of Central Universities)
(ii) Subject to availability of vacant positions and fitness, teachers shall also be reemployed on contract appointment beyond the age of sixty five years up to the age of seventy years. Re-employment beyond the age of superannuation shall, however, be done selectively, for a limited period of 3 years in the first instance and then for another further period of 2 years purely on the bais of merit, experience, area of specialization and peer group review and only against available vacant positions without affecting selection or promotion prospects of eligible teachers.
(iii) Whereas the enhancement of the age of superannuation for teachers engaged in classroom teaching is intended to attract eligible persons to a career in teaching and to meet the shortage of teachers by retaining teachers in service for a longer period and whereas there is no shortage in the categories of Librarians and Directors of Physical Education, the increase in the age of superannuation from the present sixty two years shall not be available to the categories of Librarians and Directors of Physical Education. "
5. Learned Senior Counsel placed reliance on the judgment of Hon'ble High court of Patna in CWJC No.11348 of 2010 Dr. Sunity Pandey vs. The State of Biar & Amp. Ors decided on 20.08.2010. The judgment of Karnataka High Court in W.P.Nos.13449-453 of 2011 in Dr. R.Halesha and Ors vs. State of Karnataka and Ors, wherein it has been held as follows:
"7.16 It is evident from the above that the Scheme framed by the Government of India vide letter dated 31.12.2008 provides for a common revision of pay scales of teachers of Universities and Colleges (affiliated or constituent) established under the Central, State or Provincial Acts, with enhancement of age of Superannuation to 65 years. The said Scheme has been incorporated as part and parcel of the UGC Regulations 2010. The said Regulations are framed in exercise of power under the UGC Act and would hence over-ride any executive government orders issued contrary to the same. In other words the denial by the State Government of the enhancement of the age of superannuation to teachers working the Government and Aided, affiliated colleges drawing the UGC Scales of pay is repugnant to the UGC Act and the UGC Regulations, 2010 and is hence void.
7.17 In the result, the impugned Orders/Annexures, in the respective petitions, which have the effect of denying the enhancement of the age of superannuation to 65 years, as provided under the UGC Regulations 2010, are hereby quashed. The Petitioners shall be continued in service in the posts held by them as on the date of the petitions, or immediately prior thereto, till they attain the age of superannuation at 65, in accordance with the UGC Regulations 2010, with all consequential benefits.
7.18 Notice having been issued to the Respondents in some of the petitions, but however, since the Respondents were represented in other petitions and the several contentions raised having been heard, the learned Government Pleader is permitted to file his memo of appearance on behalf of the State in those petitions, within a period of four weeks."
6. The reliance is placed on judgment of Hon'ble High court of Jharkand in W.P.(s) No.363/2010 and other connected petitions (Dr.Maheshwar Tiwary and Ors vs. The State of Jharkand and ors) decided on 10.01.2011, whereas it was held as under:
....Coming to the first point relating to the scheme being voluntary or mandatory or that it is to be accepted in part or be accepted as whole, reference may be made again to Clause 8(p)(v) which certainly speaks that it is upto the State Government to adopt and implement the scheme but taking into account the terms and conditions attached to the said Clause 8(p)(v) it would appear that if the State Government wishes to adopt and implement this scheme, it has to adopt the scheme accepting the terms and conditions as laid down in Clause (a) to (g). One of the conditions as laid down in Clause (g) of Clause 8(p)(v) is that if the scheme is to be adopted by the State Government, it has to be adopted as composite one. That stand of the Central Government was reiterated further in Clause (iv) of the letter dated 11.5.2010 and ultimately, those schemes relating to revision of pay and enhancement of age was formulated as regulations which were framed in exercise of power conferred under Clause (e) and (g) of Sub-section (1) of Section 26 of the University Grants Commissioner Act, 1956 and the scheme formulated under the aforesaid two letters form part of the regulation. As per Clause 2.1.0, the revised scales of pay and other service conditions including age of superannuation in central universities is to be implemented strictly in accordance with the decision of the Central Government. Further Clause 2.3.1 does stipulate that the said scheme relating to revision of pay and other service conditions including enhancement of age would be applicable to the universities of the State and the scheme is to be adopted as composite one. Thus, op option is left with the State to accept one part of the scheme, i.e. revision of pay as is the case here and not to accept the directive relating to enhancement of age from 62 to 65 years. It is not open for the State Universities/State Government to accept there commendation relating to revision of pay and to have 80% grant on account of additional burden without accepting other directives as on account of failure to accept all recommendation of U.G.C the University/State Government in terms of the Clause 3 of the regulation would reap consequences whereby it would be debarred from getting Central Government.
So far decision rendered in a case of B. Bharat Kumar and Ors. v. Usmania University is concerned, the Hon'ble Supreme Court having considered the language of the letter dated 27.7.1998 did hold that the scheme is voluntary and as such, it is not binding on the State. It also held that it is the matter between the State Government on one hand and the U.G.C on the other and it would be for the U.G.C to extend the benefit of the scheme or not to extend the same depending upon the satisfaction about the attitude taken by the State Government in the matter of implementing the scheme. While holding so, the Court also took notice of the fact that the said letter did not have any legislative impact, obviously for the reason that no such regulation as is there in the present case had been formulated at that time. The formulation of the scheme now makes hail of difference as the regulation framed becomes part of the University Grants Commission Act which has been legislated by the Parliament in terms of the Entry 66 of the List I of Schedule 7 of the Constitution of India whereas Jharkhand State University Act has been legislated under Entry 25 of List III. Entry 66 of List I and Entry 25 of List III of the 7"' Schedule of the Constitution of India reads as follows:
Entry 66 List I:
66. Coordination and determination of standards in institutions for higher education or research and scientific and technical institution
25. Education including the technical education, medical education and University, subject to the provisions of Entry 63, 64, 65 and 66 of List I; Vocational and Technical training and Labour Training:
On conjoint reading of both the entries there cannot be any doubt whatsoever that although the State has a wide legislative field to cover, the same is subject to Entries 63, 64, 65 and 66 of List I. Once, thus, it is found that any State Legislation does entrench upon the legislative field of entry 66 of List I of 7th Schedule of the Constitution of India that piece of legislation in view of Article 254(1) of the Constitution of India can be held to be invalid. Now therefore, it has become necessary to examine as to whether any legislation with respect to service condition of the university teachers particularly with respect to age of superannuation can be subject matter of legislation by the Parliament under Entry 66 of List I of 7th Schedule of the Constitution of India.
18. The Hon'ble Supreme Court at various occasion has occasioned to deal with this kind of issue. One such case is of State of Tamil Nadu v. Adhiyaman Educational & Research Institute (1995) 4 SCC 104 wherein the Court has laid down the law in following terms:
41. What emerges from the above discussion is as follows:
(i) The expression 'coordination' used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean education. It means harmonization with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make 'coordination' either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention.
19. The interplay of Entry 66 List I and Entry 25 List III was again examined by a Constitution Bench in a case of Preeti Srivastavs (Dr.) v. State of M.P (1999) 7 SCC 120 in the context of lowering of standard by the State for admission to a post graduate course in a medical college and it was held that the State cannot while controlling education in the State impinge on standards in institutions for higher education, because this is exclusively within the purview of the Union Government. While considering the question whether norms for admission have any connection with the standard of education and that they are only covered by Entry 25 of List III, it was observed that any lowering of the norms for admission does have an adverse effect on the standard of education in the institution of higher education. The standard of education in institution depend on various factors like (i) caliber of teaching staff (ii) proper syllabus various factors like (i) caliber of teaching staff (ii) proper syllabus design to achieve high level of education in a given span of time (iii) student- teacher ratio (iv) equipment and laboratory facilities (v) caliber of student admitted (vi) adequate accomodation in the institution (vii) standard of examination held including the manner in which paper are set and examined and evaluation of the practical examination done.
It was pointed out that education involves a continuous interaction between the teachers and the students. The base of teaching, the level to which teaching can rise and the benefit which the students ultimately receive depend as much on caliber of the students as on the caliber of the teachers and the availability of the adequate infrastructure facilities.
Apart from the aforesaid proposition laid down by the Hon'ble Supreme Court in the case of Preeti Srivastavs (Dr.) vs. State of M.P. (supra) the Hon'ble Supreme Court again in a case of Prof. Yashpal and another vs.State of Chahattisgarh and others [(2005) 5 SCC 420] has observed: " The consistent and settled view of this Court, therefore, is that in spite of incorporation of Universities as a legislative head being in the State List, the whole gamut of the University which will include teaching, quality of education being imparted, curriculum, standard of examination and evaluation and also research activity being carried on will not come within the purview of the State legislature on account of a specific Entry on co-ordination and determination of standards in institutions for higher education or research and scientific and technical education being in the Union List for which the Parliament alone is competent. It is the responsibility of the Parliament to ensure that proper standards are maintained in institutions for higher education or research throughout the country and also uniformity in standards is maintained.
Once the proposition as has been laid clown by the Hon'ble Supreme Court in the aforesaid two decisions, there would be hardly any substance in the objection raised on behalf of the State and the Universities that any legislation with respect to enhancement of age of the teachers from 62 to 65 years would be beyond the competence of the Central Government to make any legislation under Entry 66 of List I as the age seems to have been enhanced to attract eligible person to have teaching career and thereby the students would be getting more experienced teachers which would certainly raise the standard of teching which proposition can fairly and reasonably be comprehended. At this stage, I may refer to a case of Check Post Officer v. K.P. Abdulla and Bros (1970) 3 SCC 355 wherein it has been held that entry confers power upon the legislature to legislate for matters ancillary or incidental, including provision for avoiding the law. As long as the legislation is within the permissible field in pith and substance, objection would not be entertained merely on the ground that while enacting legislation, provision has been made for a matter which though germane for the purpose for which competent legislation is made it covers an area beyond.
Thus, in view of the proposition laid down by the Hon'ble Supreme Court as referred to above, stipulation made under the regulation regarding enhancement of the age from 62 to 65 years cannot be said to be an encroachment of the field of the State Legislature. That being the situation, age of superannuation prescribed under Section 67 of the Jharkhand University Act framed under Entry 25 of List III of the Constitution of India being in conflict with the regulation so far it relates enhancement of the age from 62 to 65 would be void and inoperative in terms of Article 254(1) of the Constitution of India. Accordingly, order as contained in Memo No. 1188 dated 20.11.2010 refusing to extend the age from 62 to 65 is hereby set aside.
22. Thus, in view of the conclusion arrived at just hereinabove and also conclusion that scheme formulated by way of regulation is to be adopted as composite one, the age of superannuation of the Petitioners would stand extended to 65 years. As a consequence whereof the Petitioners who was in service was made to retire on 30.6.2010 or thereafter on attaining the age of 62 years would be entitled to the benefit of extended age of superannuation as a result of which they are to be taken back in service with continuity and all consequential benefits."
7. Learned Senior Counsel for the petitioners referred to the Regulations, called the University Grants Commission Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010 (hereinafter referred to as 'the Regulations 2010), to contend, that these are applicable to every university established or incorporated by or under a central Act, Provincial Act or a State Act, every institution including a constituent or an affiliated college recognised by the Commission, in consultation with the University concerned under Clause (f) of Section 2 of the University Grants Commission Act, 1956, and every institutions deemed to be a University under Section 3 of the said Act. The Regulations dealing with the age of superannuation, therefore, are binding on the State Government. That the impugned notification, being contrary to the statutory regulations, deserves to be set aside, on this ground alone.
8. Learned Senior Counsel for the petitioners also referred to the judgment of the Hon'ble Division Bench of this Court, in N.Priyadarshini and others vs. The Secretary to Government, Education Department, Chennai and another, (2005) 3 MLJ 97, wherein this Court was pleased to quash the Government Order, being contrary to the Regulations framed under the Indian Medical Council Act, 1956. This Court held as under:
"19. The 1997 Regulations (quoted above) make it clear that in States having only one Medical College and one University board/ examining body conducting the qualifying examination, the marks obtained at such qualifying examination may be taken into consideration for granting admissions in M.B.B.S. Course. However, in States having more than one university/board/examining body, an entrance examination is mandatory. This is because, as pointed out in the aforesaid decisions of the Supreme Court, different examining bodies have different standards of marking, different syllabus, etc., and hence a student who appears for the examination conducted by an examining body which is stringent in granting marks will be discriminated against vis- -vis a student who appears for the examination conducted by an examining body which is liberal in granting marks. This will be violative of Article 14 of the Constitution as held in the aforesaid decisions.
20. Thus, the 1997 Regulation is, in our opinion, really in furtherance of Article 14 of the Constitution which aims at equality. As already mentioned above, the 1997 Regulations has statutory force as under Section 33 of the Indian Medical Council Act, 1956 it will amount to delegated legislation. In Andhra Bank v. B.Satyanarayan, (2004) 2 SCC 657 (vide paragraph 10) it was held by the Supreme Court that a valid regulation once framed would be part of the Statute. Similarly in St.Johns Teachers Training Institute v. Regional Director,(2003) 3 SCC 321 (vide paragraph 10), the Supreme Court observed: -
"The regulations made under power conferred by the statute are supporting legislation and have the force and effect, if validly made, as an Act passed by the competent legislature (see Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331)"
It is not disputed by the respondents that the Regulations in question have been validly made under power conferred by the statute. Hence they have to be treated as part of the relevant Act itself.
21. Mr.P.P.Rao, learned senior counsel appearing for the respondents, has relied on the decision of the Supreme Court in State of M.P v. Kumari Nivedita Jain, (1981) 4 SCC 296 in which it was held that while Regulation I of the Indian Medical Council Regulations has mandatory force, Regulation II of the said Regulations (which include Regulations relating to admission in the Medical Colleges) is only directory and not mandatory. A similar view was taken by the Supreme Court in Ajay Kumar Singh v. State of Bihar, (1994) 4 SCC 401. However, in Dr.Preeti Srivastava v. State of M.P (1999) 7 SCC 120) a Constitution Bench of the Supreme Court took a view contrary to the decisions of the Supreme Court in Ajay Kumar Singh v. State of Bihar (supra) and State of M.P v. Kumari Nivedita Jain (supra), and hence the latter two decisions cannot be said to have laid down the correct law.
22. Thus, in paragraphs 56 and 57 of Dr.Preeti Srivastava's case ( supra), the Supreme Court observed: -
"In State of M.P v. Kumari Nivedita Jain (1981) 4 SCC 296 the provisions of the Indian Medical Council Act and the regulations framed for undergraduate medical courses were considered by the Court. The Court said that while Regulation I was mandatory, Regulation II was only recommendatory and need not be followed. We do not agree with this line of reasoning for the reasons which we have set out above.
In the case of Medical Council of India v. State of Karnataka, (1998 ) 6 SCC 131, a Bench of three judges of this Court has distinguished the observations made in Nivedita Jain (1981) 4 SCC 296. It has also disagreed with Ajay Kumar Singh v. State of Bihar, (1994) 4 SCC 401 and has come to the conclusion that the Medical Council regulations have a statutory force and are mandatory. The Court was concerned with admissions to the MBBS Course and the regulations framed by the Indian Medical Council relating to admission to the MBBS course. The Court took note of the observations in State of Kerala v. T.P.Roshana, (19 79) 1 SCC 572 (SCC at p.580) to the effect that under the Indian Medical Council Act, 1956, the Medical Council of India has been set up as an expert body to control the minimum standards of medical education and to regulate their observance. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. There is, under the Act an overall vigilance by the Medical Council to prevent sub-standard entrance qualifications for medical courses. These observations would apply equally to postgraduate medical courses. We are in respectful agreement with this reasoning."
23. Thus, in view of the Constitution Bench decision of the Supreme Court in Dr.Preeti Srivastava's case it has to be held that all the Medical Council Regulations, including those relating to admissions in medical colleges, are mandatory and not directory.
24. As already stated above, the 1997 Medical Council Regulations ( quoted above) amount to delegated legislation, and are hence to be treated as part of the Medical Council Act. On the other hand, the impugned G.O.Ms.No. 184 Higher Education (J2) Department, dated 09.06.2005 is a purely executive order. It is well settled that an executive order cannot over ride the statutory rules or regulations.
25. It is no doubt true that ordinarily this Court does not interfere with policy decisions of the State Government vide Union of India v. International Trading Company, (JT 2003 (4) SC 549), Tamil Nadu Electricity Board v. Tamil Nadu Electricity Board Engineers Association, 2005 (1) MLJ 507, Chairman and MD, BPL Ltd. v. S.P.Gururaja and others, (2003) 8 SCC 567, Indian Charge Chrome Ltd v. Union of India, (2 003) 2 SCC 533, Union of India v. Kannadapara Sanghatanegala Okkuta & Kannadigara, (2002) 10 SCC 226, Federation of Railway Officers Association v. Union of India, (2003) 4 SCC 289, etc. However as observed by the Supreme Court in State of N.C.T of Delhi v. Sanjeev, AIR 2005 SC 2080 (vide paragraph 16), there can be judicial review of administrative action on three grounds namely: -
(i)Illegality
(ii) Irrationality
(iii) Procedural impropriety
Thus, the policy decision of the State Government will have to be quashed if it is illegal or unconstitutional, or shockingly arbitrary in the Wednesbury sense."
9. The contention of learned Senior Counsel for petitioners was, that the impugned Government Order, being contrary to the "Regulations 2010" cannot be sustained. Reliance was also placed on the judgment of this Court in D.Ganesan vs. State of Tamil Nadu and others, 2012 (2) CTC 177, wherein this Court has laid down as under:
"21. The present writ petition is not a public interest litigation. It is filed for the issue of a Writ of Quo Warranto. The appointment of the third respondent is contrary to the UGC Regulations 2010, which has been adopted by the Tamil Nadu Dr. Ambedkar Law University and accepted by the Bar Council of India in the Rules of Legal Education, 2008. The adhoc rules framed by the Government should only be read in tune with UGC Regulations 2010. Therefore, the writ petition is maintainable and the appointment of the third respondent is liable to be set aside."
10. The writ petition is opposed by the learned Advocate General by contending, that the Government implemented the revision of UGC scales of pay in respect of the Colleges and University Teachers in the Tamil Nadu Agricultural University vide G.O.Ms.No.39, Agriculture (AU) Department dated 01.03.2010, but decided to retain the present retirement age, i.e. 60 years for the University Teachers. Further, it has also been decided, that there shall be no-reemployment beyond the age of superannuation.
11. It is stand of the State, that while issuing the Government Order, revising pay scales, based on Government of India Lr.No.1-32/2006-U.II/U.I(i) dated 31.12.2008, the Government of India has also not revised the age of superannuation of the Teachers of Tamil Nadu Agriculture University. It is submitted, that the letter of the Ministry of Human Resources Development Department, on which reliance is placed by petitioners for increase of age of superannuation, is applicable to the Teachers, working under Central Educational Institutions and not to the State universities.
12. It is also stand of the State, that UGC "Regulations 2010" are applicable to the University and College Teachers, Librarians, Director of Physical Education and Sports, excluding the Teachers in the faculties of Agriculture and Veterinary Science for which the norms / regulations of Indian Council of Agricultural Research applies, as there is no shortage of Teachers in Tamil Nadu.
13. It is also submissions of respondents, that out of 45 State Agricultural Universities, spread over the country, only 14 State Agricultural Universities have enhanced the age of superannuation, based on the UGC's guidelines, whereas all the other universities have retained the age of superannuation as per existing rules.
14. Reliance in support of the contention, that Regulations 2010 are not applicable to universities, reliance is placed on the judgment of the Hon'ble High Court of Punjab and Haryana in Prof.S.S.Bindra and others vs. The State of Punjab and Others, [C.W.P.No.9665 of 2010] decided on 04.03.2011, holding therein that the Punjab University is not Central or Centrally funded university under any law, therefore, in absence of adoption, these would not apply automatically.
15. It is also stand of State, that the letter of the Government of India only related to conditions for grant of financial assistance, which is a matter between the State and the Central Government. The Central Government is not to give any financial assistance after 01.04.2010. The "Regulations 2010" are only applicable to the Central Universities, or to State universities, if so adopted and not otherwise.
16. It is the submission, that the "Regulations 2010", on which reliance has been placed, are not applicable to the faculties of Agriculture and Veterinary Science.
17. The stand, with regard to age of superannuation in the counter, reads as under:
"17. With regard to the averments made in paragraph 6 and Ground (a) of the affidavit, it is respectfully submitted that, as admitted by the petitioners that in pursuance of the recommendation, the Government of India, the 1st respondent herein by letter dated 31.12.2008 accorded sanction for revision of pay scales of Universities and Colleges in the country and communicated to all the State Governments to adopt the scheme of University Grants Commission Regulations, on Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the maintenance of Standards in Higher Education, 2010 (hereinafter referred to as University Grants Commission Regulation, 2010) framed under Section 26(1) of University Grants Commission Act, 1956 in terms of Entry 66 List I of VII Schedule to the Constitution of India. Accordingly, after careful consideration of the above recommendations, the Government issued orders in G.O.Ms.No.39, Agriculture (AU) Department, dated 1.3.2010 duly adopting the University Grants Commission Regulations, 2010 retaining the age of superannuation to 60 years. As already stated the enhancement of age of superannuation of teachers is well within the powers and policy decision of the Government of Tamil Nadu and there is no violation / direct conflict with the Central Legislation.
18. It is submitted that mere possession of 35 years of service in the University does not deserve the petitioners to interfere with the policy decision of the State Government in respect of retirement age of superannuation. Thus, there is no contrary stand in violation of the University Grants Commission Regulation, 2010 taken by the State Government, the petitioners have no right to profession and to carry on any occupation till the age of 65 years."
18. Learned Advocate General / Additional Government Pleader vehemently contended, that the letter of the Central Government was issued in exercise of powers under Section 21 of the UGC Act, 1956, which authorizes the Central Government to issue directions on the question of policy relating to the national purpose for discharge of functions by the Commission. It also provides that the decision of the Central Government in this regard is to be final, but the directions deal with only Central Universities and the Universities funded by the Central Government, and are not applicable to the State Government or State universities.
19. It was vehemently contended by learned Advocate General / Additional Government Pleader, that the "Regulations 2010" regarding revision of age will be applicable only to Centrally funded Technical Higher Educational Institutions, under the purview of Human Resources Development department, and not to the employees of the colleges and universities, which are not funded and maintained by the UGC. It was left open to the State Government to adopt decision for refixing the age of superannuation, therefore, this cannot be binding on the State Government.
20. It was also contended that the judgment of the Hon'ble Jharkand High Court and the Hon'ble Patna High Court, cannot be said to be laying down correct law, in view of the judgment of the Hon'ble Supreme Court in the case of B.Bharat Kumar and others vs. Osmania University and others, (2007) 11 SCC 58, wherein the Hon'ble Supreme Court was pleased to lay down as under:
"12. We would, therefore, first examine as to whether the two Division Benches have rightly relied upon the said judgment held against the appellants. We have examined the judgment in extenso. This is also a case where the UGC had floated a scheme in 1986 which was framed by the Central Government pursuant to the Mehrotra Committee Report. In that scheme there was a Circular dated 17.6.1987 addressed by the Ministry of Human Resource Development, Department of Education to the Education Secretaries of all the States, UTs and it was clearly mentioned therein that the adoption of the scheme was voluntary and the only result follow from the State Government not adopting the scheme might be that the State Government may not get the benefit of the offer of reimbursement from the Central Government to the extent of 80% of the additional expenditure involved in giving effect to the revision of pay-scales as recommended by the scheme. Therefore, the factual situation was almost identical as in the present case. This Court approved specifically a paragraph in the Kerala High Court judgment which we have already quoted earlier in this judgment in para 5. In that the Kerala High Court had specifically rejected the contention that the State Government having accepted the UGC scheme and as the scheme provided for the higher age of 60 years, the clause of the scheme regarding age of retirement also would become applicable. The Kerala High Court had specifically further observed that the UGC scheme did not become applicable as it was not obligatory for the Government and the Universities to follow the same. The Kerala High Court read a discretion in the State Government to accept or not to accept the scheme.
13. The situation is no different in the present case also. The very language of the letter dated 27.7.1998 suggests that the scheme is voluntary and not binding at all. Further it is specified in the judgment of the Kerala High Court that the teachers had no right to claim a specific age because it suggested in the scheme which scheme was itself voluntary and not binding. The Court clearly observed that "the appellant cannot claim that major portion of the scheme having been accepted by the Government, they have no right not to accept the clause relating to fixation of higher age of superannuation". The Court therein observed that it is a matter between the State Government on the one hand and the University Grants Commission on the other and it would be for the University Grants Commission to extend the benefit of the scheme or not to extend the same depending upon its satisfaction about the attitude taken by the State Government in the matter of implementing the scheme. It was lastly clearly observed that as long as the State Government has not accepted the UGC's recommendations to fix the age of superannuation at 60 years, teachers cannot claim as a matter of right that they were entitled to retire on attaining the age of 60 years.
14. Inspite of our best efforts, we have not been able to follow as to how the judgment of the Kerala High Court, which has been approved by this Court is, in any manner, different from the factual situation that prevails here in this case. It is for that reason that we have extensively quoted not only the aforementioned letter dated 27.7.1998 but also the subsequent letters and the further policy statement. Plain reading of all these is clear enough to suggest that the scheme was voluntary and it was upto the State Governments to accept or not to accept the scheme. Again even if the State Government accepted a part of the scheme, it was not necessary that all the scheme as it was, had to be accepted by the State Government. In fact the subsequent developments suggest that the State Government has not chosen to accept the scheme in full inasmuch as it has not accepted the suggestions on the part of the UGC to increase the age of superannuation.
15. Once we take this view on the plain reading of the scheme, it would be necessary for us to take stock of the subsequent arguments of Mr.Rao regarding Entry 66 in the List I vis-`-vis Entry 25 in List III. In our opinion, the communications even if they could be heightened to the pedestal of a legislation or as the case may be, a policy decision under Article 73 of the Constitution, they would have to be read as they appear and a plain reading is good enough to show that the Central Government or as the case may be UGC also did not introduce the element of compulsion vis-`-vis the State Government and the Universities. We, therefore, do not find any justification in going to the Entries and in examining as to whether the scheme was binding, particularly when the specific words of the scheme did not suggest it to be binding and specifically suggest it to be voluntary.
16. Much debate was centered around the interpretation of the words "wish" and "gamut". In our opinion it is wholly unnecessary and we have merely mentioned the arguments for being rejected. Once the scheme suggested that it was left to the "wish" of the State Government, there will be no point in trying to assign the unnatural meaning to the word "wish". Similarly, there would be no point in going into the interpretation of the word "gamut" and to hold that once the State Government accepted a part of the scheme, the whole scheme had to be accepted by the same as such would, in our opinion, be an unnecessary exercise.
17. In view of the plain and ambiguous language of the scheme, there would be no necessity on our part to attempt any interpretation. For the same reasons we need not consider the argumets based on the decisions in O.P. Singla, Maniklal Majudar, Chandrika Prasad Yadav & Dove Investments as they all pertained to principles of interpretation which exercise would have been necessary for us only if the language was ambiguous. It is also not necessary for us to extensively consider Dove Investment's case as from the plain language of the scheme itself we find that it is not a mandatory scheme in the sense being binding against the State Governments."
21. Reliance was also placed on the judgment of the Hon'ble Punjab and Haryana High Court in the case of Prof.S.S.Bindra and others vs. The State of Punjab and Others, (supra), wherein the Hon'ble High Court of Punjab and Haryana, was pleased to lay down as under:
"19. As observed in the above judgment, the scheme itself having given discretion for its acceptance even if the same was statutory, there was no conflict in the scheme and the decision of the State Government. In view of judgment of the Hon'ble Supreme Court, we respectfully dissent from the view taken by the Jharkhand and Patna High Courts as the same is contrary to the judgment of the Hon'ble Supreme Court. The judgment of the Hon'ble Supreme Court could not be distinguished on the ground that earlier the scheme was non statutory while now it was statutory. The Hon'ble Supreme Court clearly observed that even if the same was taken to be statutory, the same being voluntary and gave discretion to the State Governments to accept it or not, there was no question of conflict so as to invoke Entry 66 of List I and to hold primacy of the scheme over the decision of the State Government. Giving of reimbursement was a different matter between the UGC and the State Government and condition referred to in para 8(p)(v) (g) did not have the effect of revision of age of superannuation by itself. Affidavit before the Madhya Pradesh High Court does not state that age of superannuation in all institutions stands revised automatically.
20. Accordingly, the question has to be decided in the negative to the effect that the service conditions regarding age of retirement prescribed in statutory service rules under Proviso to Article 309 of the Constitution or under a statute cannot be deemed to have been amended by virtue of scheme dated 31.12.2008 except with regard to "Centrally funded higher and technical education institutions coming under the purview of this ministry in order to overcome the shortage of teachers."
22. In rebuttal, learned counsel for the petitioners vehemently contended that the judgment of the Hon'ble Punjab and Haryana High Court is under challenge before the Hon'ble Supreme Court in SLP CC 12612 of 2011, wherein the following orders have been passed:
"Permission to file the special leave petition is granted. Delay condoned. Issue notice, returnable six weeks hence. In the meantime, the parties are directed to maintain status quo with regard to the petitioner's post."
23. On consideration of the respective contentions, the question to be decided in this case will be,
"whether the "Regulations 2010" are applicable automatically to petitioners or it is left to the discretion of the State Government to accept or not to accept".
24. The reading of Clause 1.2 of the "Regulations 2010" leaves no manner of doubt, that these regulations apply to every university established or incorporated by or under the Central Act, Provincial Act or a State Act, every institution including a constituent or an affiliated college recognised by the Commission, in consultation with the University concerned under Clause (f) of Section 2 of the University Grants Commission Act, 1956 and every institutions deemed to be a University under Section 3 of the said Act. The regulations, therefore, would apply to every university constituted under the State Act. It is also not disputed that the regulations framed by the UGC have overriding effect over the Government Orders. However, inspite of this, answer to question will be against the petitioners for the reasons hereinafter stated.
25. The scheme reads as under:
"(i) This Scheme shall be applicable to teachers and other equivalent cadres of Library and Physical Education in all the Central Universities and Colleges there-under and the Institutions Deemed to be Universities whose maintenance expenditure is met by the UGC. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Regulations to be framed by the UGC in this behalf. Universities implementing this Scheme shall be advised by the UGC to amend their relevant statutes and ordinances in line with the UGC Regulations within three months from the date of issue of this letter.
(ii) This Scheme does not extend to the cadres of Registrar, Finance Offier and Controller of Examinations for which a separate Scheme is being issued separately.
(iii) This Scheme does not extend to the Accompanists, Coaches, Tutors and Demonstrators. Pay and Grade Pay of the said categories of employees shall be fixed in the appropriate Pay Bands relative to their existing Pay in each university / institution corresponding to such fixation in respect of Central Government employees as approved by the Central Government on the basis of the recommendations of 6th Central Pay Commission.
(iv) This Scheme does not extend to the posts of professions like System Analysts, Senior Analysts, Research Officers etc., who shall be treated at par with similarly qualified personnel in research / scientific organizations of the Central Government.
(v) This Scheme may extended to universities, Colleges and other higher educational institutions coming under the purview of State legislatures, provided State Governments wish to adopt and implement the Scheme subject to the following terms and conditions:
(a) Financial assistance from the Central Government to State Governments opting to revise pay scales of teachers and other equivalent cadre covered under the Scheme shall be limited to the extent of 80% (eighty percent) of the additional expenditure involved in the implementation of the revision.
(b) The State Government opting for revision of pay shall meet the remaining 20% (twenty percent) of the additional expenditure from its own sources.
(c) Financial assistance referred to in sub-clause (a) above shall be provided for the period from 1.01.2006 to 31.03.2010
(d) The entire liability on account of revision of pay scales etc. of university and college teachers shall be taken over by the State Government opting for revision of pay scales with effect from 1.04.2010.
(e) Financial assistance from the Central Government shall be restricted to revision of pay scales in respect of only those posts which were in existence and had been filled up as on 1.01.2006.
(f) State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme, and may give effect to the revised bands / scales of pay from a date on or after 1.01.2006; however, in such cases, the details of modifications proposed shall be furnished to the Central Government and Central assistance shall be restricted to the Pay Bands as approved by the Central Government and not to any higher scale of pay fixed by the State Government(s).
(g) Payment of Central assistance for implementing this Scheme is also subject to the condition that the entire Scheme of revision of pay scales, together with all the conditions to be laid down by the UGC by way of Regulations and other guidelines shall be implemented by State Governments and Universities and Colleges coming under their jurisdiction as a composite scheme without any modification except in regard to the date of implementation and scales of pay mentioned herein above."
26. The Regulation making authority, while framing the "Regulations 2010", has left it to the discretion of the State Government to adopt or not to adopt the scheme.
27. The only condition in the scheme is, that the payment of central assistance on adoption of scheme is subject to the condition that the scheme has to be adopted without any modification.
28. Once the regulation making authority left it to the option of the State Government, either to implement or not to implement the regulations, these cannot be automatically binding on the State Government. The impugned Government Order, therefore, cannot be said to be contrary to the "Regulations 2010".
29. The contention of learned Senior Counsel for the petitioners was, that the Hon'ble High Court of Jharkhand and the High Court of Patna considered the judgment of the Hon'ble Supreme Court in B.Bharat Kumar and others vs. Osmania University and others (supra) to hold that it does not apply to the statutory regulations, with respect to the Hon'ble Judges of those Courts. This view cannot be accepted, as the Hon'ble Supreme Court specifically held as under:
"15. Once we take this view on the plain reading of the scheme, it would be necessary for us to take stock of the subsequent arguments of Mr.Rao regarding Entry 66 in the List I vis-`-vis Entry 25 in List III. In our opinion, the communications even if they could be heightened to the pedestal of a legislation or as the case may be, a policy decision under Article 73 of the Constitution, they would have to be read as they appear and a plain reading is good enough to show that the Central Government or as the case may be UGC also did not introduce the element of compulsion vis-`-vis the State Government and the Universities. We, therefore, do not find any justification in going to the Entries and in examining as to whether the scheme was binding, particularly when the specific words of the scheme did not suggest it to be binding and specifically suggest it to be voluntary."
30. Once the Regulations 2010, which forms part of the UGC regulations, itself gave option to the State Government either to accept or not to accept, it cannot be said that the impugned Government order is in violation of the Regulations 2010, having exercised the right under the Regulations 2010 in not accepting it.
31. The reading of the regulations shows that failure to accept the scheme in totality may disentitle reimbursement of 80% of the revived pay for the specified period. It is therefore for the Central Government to consider whether not to reimburse to the State Government the financial burden for specified period for not adopting the regulations in totality, but it cannot give any legal right to the petitioners to challenge the impugned notification, by claiming it to be violative of the Regulations 2010, for having accepted the recommendation only partly.
32. For the reasons stated herein-above, there is no merits in this writ petition. It is accordingly ordered to be dismissed.
33. No costs. Connected miscellaneous petitions are closed.